STRINGER v. HENDERSON

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH

)

ROBERT STRINGER,

)

Civil Action No. 2: 21-cv-0547

)

Plaintiff,

)

United States Magistrate Judge

)

v. Cynthia Reed Eddy

)

)

BRIAN HENDERSON, JEREMY

)

BENNETT, and C/O DAY,

)

)

Defendants.

MEMORANDUM OPINION1

CYNTHIA REED EDDY, United States Magistrate Judge

This is a civil rights action initiated under 42 U.S.C. § 1983 by pro se Plaintiff, Robert

Stringer, a prisoner in the custody of the Pennsylvania Department of Corrections. There are

currently two motions for summary judgment pending before the Court:

(i) the Motion for Partial Summary Judgment filed by Plaintiff, Robert Stringer, seeking

summary judgment only on Plaintiff’s claim against Defendant C/O Henderson for failure to

protect him in violation of the Eighth Amendment (ECF No. 40), to which the Corrections

Defendants filed a response in opposition. (ECF No. 44); and

(ii) the Motion for Summary Judgment filed by the Corrections Defendants seeking

summary judgment on both of Plaintiff’s remaining claims, a failure to protect claim and a

retaliation claim (ECF No. 49), to which Plaintiff did not file a response.

1 All parties have consented to jurisdiction before a United States Magistrate Judge;

therefore, the Court has the authority to decide dispositive motions, and to eventually enter final

judgment. See 28 U.S.C. § 636, et seq. See ECF Nos. 6 and 11.

The motions are fully briefed and the factual record thoroughly developed. See ECF

Nos. 39, 40-1, 41, 44, 45, 46, 50, 51, and 52. After careful consideration of the motions, the

material in support and in opposition thereto, the parties’ memoranda, the relevant case law, and

the record as a whole, the Court finds that issues of material fact exist from which a factfinder

could decide that C/O Henderson was deliberately indifferent to a serious risk of harm to

Plaintiff and that deliberate indifference caused harm to Plaintiff. Thus, Plaintiff’s motion for

partial summary judgment will be denied. The Corrections Defendants’ motion for summary

judgment will be granted in part and denied in part. The motion will be granted only to the

extent that Plaintiff’s claim for compensatory damages is precluded by the Prison Litigation

Reform Act, 42, U.S.C. § 1997e(e). In all other respects, the Corrections Defendants’ motion

will be denied.

I. Factual Background

Plaintiff, Robert Stringer, is a state prisoner in the custody of the Pennsylvania

Department of Corrections currently confined at SCI-Somerset. The events giving rise to this

lawsuit occurred while Stringer was confined at SCI-Greene. It is not disputed that on the

morning of June 13, 2019, Stringer went to the medical area of SCI-Greene wanting to speak to

someone in the Security Office, which is in the same building as the Medical Department.

Declaration of Bryan Henderson, ¶ 6 (ECF No. 46-1). That day, C/O Henderson was assigned

as the Medical Lobby Officer in the control bubble in the Medical Department.2

According to Stringer, he approached the control bubble in the Medical Department and

notified C/O Henderson he was there to see someone in the Security Office. C/O Henderson

2 In June 2019, C/O Henderson’s regular assignment was as a Transport Officer on the

0600-1400 shift. However, if there were no transports scheduled on a given day, there were

times he would be reassigned depending on the needs of the institution. Declaration of Bryan

Henderson, at ¶¶ 3 – 6 (ECF No. 46-1).

directed him to go to the medical waiting area with the other prisoners and someone would be

out to see him. After a few minutes, C/O Henderson came into the medical waiting area and

announced in front of other prisoners that “Stringer is waiting to give information to security.”

Pl’s Br. in Supp. of Partial S.J., Appendix A, Stmt of Facts, ¶ 3. (ECF No 41-1). C/O Henderson

then returned to the control bubble. C/O Henderson returned a few minutes later to the waiting

area and announced for the second time, again in front of other prisoners, that “Stringer is

waiting to give information to security.” Id. at ¶ 4. C/O Henderson then returned to the control

bubble. C/O Henderson returned to the waiting area a third time at which point C/O Henderson

called the Security Office on a telephone and said, again in front of other prisoners, “Stringer is

waiting to give you information (‘snitch’).” Id. at ¶ 5.

C/O Henderson describes the events in the waiting area not much differently: Stringer

approached the control bubble and advised that he wanted to speak with someone from the

Security Office. C/O Henderson told Stringer to “stand by and someone would be out to see

him.” Stringer returned several times to the control bubble to advise that he wished to speak

with someone in the Security Office and each time C/O Henderson told him to wait and that

someone would be out. After Stringer had come to the bubble several times, C/O Henderson

exited the bubble with a handheld telephone and called the Security Office. Declaration of

Bryan Henderson at ¶¶ 7 – 8. (ECF No. 46-1 at p. 6-7).3

It is not disputed that C/O Henderson then sent Stringer back to his housing unit.

According to the Amended Complaint, when Stringer returned to his housing unit, “inmates

came up to Plaintiff saying we heard you were going to Security to snitch, you’re a rat and you

3 Most of the facts that are material to Plaintiff’s failure to protect claim are undisputed.

For example, C/O Henderson does not deny that he stated in front of other prisoners that

Stringer was in the medical area because he was waiting to speak with someone in the Security

Office. However, C/O Henderson disputes that he “explicitly referred to Plaintiff as a ‘snitch’

or a ‘rat’.” Ds’ Br. in Support of Mot. for S.J., at 5. (ECF No. 44).

know what’s going to happen to you.” Amended Complaint, at ¶ 7. It also is not disputed that

Stringer reported these threatening comments to his housing unit Sergeant and the next day,

June 14, 2019, Stringer was moved to the Restricted Housing Unit (“RHU”) on protective

custody.

On June 25, 2019, Stringer filed Grievance 808825 in which he complained of C/O

Henderson’s conduct and comments. Stringer reported that “inmates started telling the inmates

on [his] block that [he] was a snitch,” placing him in immediate danger and fear for his life.

Grievance 808825 (ECF No. 41-2). As relief, Stringer sought compensatory damages and

requested that C/O Henderson undergo training, be reprimanded, and be transferred. Id. The

grievance was upheld, in part, to the extent that the investigation confirmed that “Officer

Henderson did, unfortunately, indicate why you were [in Medical] in front of other inmates.”

Initial Review Resp., ECF No. 41-2 at p. 4. The grievance was “denied in part that a security

review and transfer petition has been filed. Your request for the officer to undergo training and

be reprimanded and compensatory damages is also denied.” Id. Stringer appealed the partial

denial of his grievance to final review, which was denied on October 21, 2019. (ECF No. 41-2

at p. 5).

Stringer contends that throughout his stay in the RHU, he continually experienced verbal

threats by other inmates. See Amended Complaint, at ¶ 9. According to the Amended

Complaint, “[a]lmost daily, inmates would get on the door calling Plaintiff a rat, a snitch, he

was going to die and someone would get him eventually.” Id. at ¶ 10. Stringer has submitted

the affidavit of Anel Cuenas, who states,

In July or August of 2019, I was sent to the hole and ended up on the same block

with Mr. Stringer in the hole. I saw and heard inmates on the door yelling at Mr.

Stringer calling him a rat and that they would kill him or assault[] him if they

ever ended up in the next jail he goes in. People went as far as to say that they

would get in contact with one of their friends in whatever jail he goes to and get

him assaulted after finding him on inmate locator.

Affidavit of Anel Cuenas, 8/22/2021 (ECF No. 41-4 at p. 2). These continual threats started

making life difficult for Stringer. He “was in fear of his life, couldn’t sleep at night, [and]

continues to suffer from bouts of depression and anxiety to which he receives psych. treatment

as a result.” Amended Complaint, at ¶ 11.

Additionally, Stringer alleges that he was subject to retaliation due to his filing

Grievance 808825 against C/O Henderson. According to the verified Amended Complaint,

“several correctional officers, staff, including Defendant(s) Bennett and Day, harassed Plaintiff

by denying him access to his legal work for not ‘signing off’ on the grievance.” Id. at ¶ 16.

Stringer contends he had an appeal pending before the Pennsylvania Superior Court, Case No.

189 WDA 2019, and that both C/O Bennett and C/O Day knew Stringer had a court imposed

filing deadline to file a timely brief with the Superior Court, both knew that Stringer could not

file the brief without having access to his legal property, and both told Stringer they would not

give him his legal property because he had filed a grievance against C/O Henderson.

Specifically, Springer avers:

28. On June 27, 2019, Plaintiff spoke to Defendant Day about getting his

legal work and he told Plaintiff that since he filed a grievance on Defendant

Henderson he would make sure he got nothing.

. . . .

37. On numerous occasions both Defendants Bennett and Day told Plaintiff that

since he filed a grievance on Defendant Henderson they was not giving him his

legal work and laughed.

Amended Complaint (ECF No. 14).

On September 10, 2019, Stringer filed Grievance 822737, in which he stated that

although he had been approved for legal exchange of legal materials, he did not receive the

materials. Stringer contended that his appeal in his criminal case was dismissed “as a result of

this situation.” Grievance 822737 (ECF No. 52-1 at p. 37). The Grievance was denied on

February 18, 2020, after Stringer had been transferred to SCI Somerset, based on the following

determinations:

Mr. Stringer after careful review of your grievance number 822737 the following

determinations are made. You claim that upon your return to RHU from your

placement in POC4 that you were denied your legal work/exchange when you

requested it. Mr. Stringer our records indicate that you had been in possession of

your legal work since July of 2019. It is your responsibility to submit a request

for legal exchanges to staff members, which you had not done, also legal

exchanges are done (1) time every (30) day period. After speaking with the

officers involves and reviewing available video from requested dates there is no

evidence to substantiate the claims you bring forth in this grievance, additionally

Mr. Stringer, you would have only been located in the RHU for a fraction of the

(30) days required for a legal exchange at the time of your request.

Given the available information and facts, this grievance and your relief is

denied.

Remanded Initial Review Response, 2/18/2020 (ECF No. 52-1, at p. 44) (emphasis in original).5

Stringer remained in the RHU at SCI-Greene until October 17, 2019, when he was

transferred to general population at SCI-Somerset. See Cell History, ECF No. 46-1 at p. 3;

Program Review Committee Actions, No. ECF No. 52-1, at pp. 20 – 27.

4 From the Amended Complaint, it appears that Stringer may have been transferred from

his RHU cell to POC (a psychiatric observation cell) after “he tried to commit suicide because

he didn’t get to file his appeal,” but this is not developed in the summary judgment record.

Amended Complaint, Stmt of Facts, ¶ 47.

5 In the Amended Complaint, Stringer acknowledges that he “finally [was] given some of

his legal work but he was not given the legal work he needed to file his brief because the C/O’s

instead of taking him to go through the legal work (which is the normal procedure, they

randomly went through his legal work outside of his presence and gave him whatever they

picked.” Amended Complaint, Stmt of Facts, ¶ 39.

II. Procedural History

On or about April 6, 2021, Stringer initiated this civil rights action by filing pro se a six-

count Complaint in the Court of Common Pleas of Greene County.6 Five individuals were

named as defendants: C/O Henderson, Unit Manager Gumbarevic, C/O Bennett, C/O Day, and

Superintendent Robert Gilmore (collectively referred to as the “Corrections Defendants”). ECF

No. 1-1. On April 23, 2021, the Corrections Defendants filed a Notice of Removal in this

Court. In lieu of filing an Answer, the Corrections Defendants filed a motion to dismiss. (ECF

No. 7). In response, Stringer filed an Amended Complaint, which remains his operative

pleading. (ECF No. 14).

The Amended Complaint reduced both the number of defendants and claims. It names

only three defendants, C/O Brian Henderson, C/O Jeremy Bennett, and C/O Day, and contains

only three claims: (i) an Eighth Amendment failure to protect claim against Defendant

Henderson only (Count I); (ii) a First Amendment retaliation claim against Defendants Bennett

and Day (Count II); and (iii) a First Amendment access to courts claim against Defendants

Gumbarevic,7 Bennett, and Day (Count III). For relief, Stringer requests:

- $250,000 in compensatory damages for Plaintiff losing his top paying job,

transfer to an institution further away from family that is more expensive to

travel to for visits, loss of opportunity to pursue claims in the Superior Court and

for the continued mental health harm that Plaintiff still suffers.

- $200,000 in punitive damages to punish defendants for conduct and to deter

other from committing similar acts.

Amended Complaint, Paragraph VI – Relief (ECF No. 14) (quoted verbatim).

6 The six claims were failure to protect, deprivation of right to access the courts,

negligence, retaliation, assumpsit, and infliction of emotional distress.

7 Defendant Gumbarevic was not named in the caption of the Amended Complaint. In the

interest of justice and given the liberality afforded to pro se parties, the Court construed the

Amended Complaint as asserting an access to courts claim against Defendant Gumbarevic.

The Corrections Defendants filed a partial motion to dismiss seeking to have Count III

of the Amended Complaint, the “access to courts” claim, dismissed. (ECF No. 15). By

Memorandum Opinion and Order filed on January 24, 2022, the Court granted the motion.

(ECF Nos. 18 and 19). Because of that ruling, only the Eighth Amendment failure to protect

claim against Defendant Henderson (Claim I) and the First Amendment retaliation claim against

Defendants Bennett and Day (Count II) remain. (ECF No. 18). Discovery has now closed and

the parties have each filed motions for summary judgment.

III. Standard of Review

Summary judgment is proper only “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). “A fact is material if it ‘affect[s] the outcome of the suit under the governing law’.”

Bland v. City of Newark, Nos. 17-2228, 17-2229, 900 F.3d 77, 83 (3d Cir. 2018) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In deciding a motion for summary

judgment, the Court’s function is not to weigh the evidence, to determine the truth of the matter,

or to evaluate credibility. See Montone v. City of Jersey City, 709 F.3d 181 (3d Cir. 2013).

Rather, “[i]n determining whether a genuine dispute of material fact exists, [the Court] view[s]

the underlying facts and draw[s] all reasonable inferences in favor of the party opposing the

motion.” Bland, 2018 WL 3863378, at *3 (citing Dougherty v. Sch. Dist. of Phila., 772 F.3d

979, 986 (3d Cir. 2014)).

Stringer is proceeding pro se and thus his filings are to be construed liberally. If the

Court can reasonably read the pleadings together with his summary judgment submissions to

show an entitlement to relief, the Court should do so despite any failure to cite proper legal

authority, confusion of legal theories, poor syntax, and sentence construction, or the litigant's

unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United

States ex rel. Montgomery v. Bierley, 414 F.2d 552, 555 (3d Cir. 1969) (although a filing

prepared by a prisoner may be inartfully drawn, it should be read “with a measure of

tolerance”). In examining the record, and in consideration of Stringer’s status, the factual

allegations set forth in his verified Amended Complaint will be considered as evidence to the

extent that they are based on his personal knowledge. Jackson v. Armel, No. 17-1237, 2020 WL

2104748, at *5 (W.D. Pa. May 1, 2020) (citing Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985)

(treating verified complaint as an affidavit on summary judgment motion)). See also Brooks v.

Kyler, 204 F.3d 102, 108 n. 7 (3d Cir. 2000) (noting that an affidavit is “about the best that can

be expected from [a pro se prisoner] at the summary judgment phase of the proceedings”).

Nonetheless, at the summary judgment stage of the proceedings, the Court need not

credit bald assertions or legal conclusions unaccompanied by evidentiary support. Jones v.

United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). “[A] pro se plaintiff is not relieved of his

obligation under [Federal Rule of Civil Procedure] 56 to point to competent evidence in the

record that is capable of refuting a defendant's motion for summary judgment.” Dawson v.

Cook, 238 F. Supp. 3d 712, 717 (E.D. Pa. 2017) (citation omitted).

These summary judgment rules do not apply any differently where there are cross-

motions pending. Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). As stated by

the Court of Appeals for the Third Circuit, " '[c]ross-motions are no more than a claim by each

side that it alone is entitled to summary judgment, and the making of such inherently

contradictory claims does not constitute an agreement that if one is rejected the other is

necessarily justified or that the losing party waives judicial consideration and determination

whether genuine issues of material fact exist.' " Id. (quoting Rains v. Cascade Indus., Inc., 402

F.2d 241, 245 (3d Cir. 1968)). If review of cross-motions reveals no genuine issue of material

fact, then judgment may be granted in favor of the party entitled to judgment in view of the law

and undisputed facts. Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998) (citation

omitted).

IV. Discussion

Stringer brings his claims against the Correction Defendants under 42 U.S.C. § 1983,8

which provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory, subjects, or causes to be subjected, any citizen of

the United States or other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or other

proper proceeding for redress.

To prevail on a claim pursuant to 42 U.S.C. § 1983, a plaintiff must establish that a defendant,

acting under color of state law, deprived the plaintiff of a right secured by the Constitution or

laws of the United States. Estate of Smith v. Marasco, 430 F.3d 140, 151 (3d Cir. 2005); 42

U.S.C. § 1983. “The first step in any such claim is to identify the specific constitutional right

allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994). The Amended Complaint

alleges a violation of the Eighth Amendment against C/O Henderson for failure to protect

Stringer against harm, and a violation of the First Amendment against C/Os Bennett and Day

for retaliating against Stringer for engaging in constitutionally protected conduct. The

Corrections Defendants do not dispute that at all times they were acting under color of state law.

Thus, the Court’s analysis focuses on whether the Corrections Defendants deprived Stringer of a

8 Title 42, United States Code, section 1983 “is not a source of substantive rights but a

vehicle for vindicating rights conferred by the U.S. Constitution or by federal statute.” DiBella

v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005) (citation omitted).

right secured by the Constitution or laws of the United States. Stringer’s claims will be

addressed seriatim.

A. Eighth Amendment Failure to Protect Claim

The Eighth Amendment of the United States Constitution imposes a duty on prison

officials to “take reasonable measures to guarantee the safety of inmates.” Hudson v. Palmer,

468 U.S. 517, 526-27 (1984). This includes the general duty to “protect prisoners from violence

at the hands of other prisoners.” Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (quoting

Farmer v. Brennan, 511 U.S. 825, 833 (1994)).

In the most general sense, for a prison official to be found to have violated the Eighth

Amendment, three requirements must be met: (1) the prisoner was incarcerated under

conditions posing a substantial risk of serious harm; (2) the prison official was deliberately

indifferent to that substantial risk; and (3) the prison official’s deliberate indifference caused the

prisoner harm. Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021); see also Framer v.

Brennan, 511 U.S. 825, 832 (1994).

As to the “substantial risk” inquiry, the single most important factor is that Stringer

alleges he was labeled a “snitch/rat” by other prisoners based on C/O Henderson’s comments

made in front of other prisoners. The Court of Appeals for the Third Circuit has acknowledged

that labeling a prisoner as a “snitch” can create a substantial risk of serious harm. See Bistrain

v. Levi, 696 F.3d 352, 371 (3d Cir. 2012) (finding it was reasonable to infer that a prisoner

rumored to be a snitch was at an increased risk of assault); see also Brown v. Shrader, No. 2:14-

CV-1085, 2015 WL 5027510, at *4 (W.D. Pa. Aug. 25, 2015) (“If the Court accepts as true [the

prisoner’s] allegations that [a prison employee] labeled him a snitch, that the label was

communicated to other inmates, and that he was aware of the obvious danger associated with a

reputation as a snitch, as a reasonable prison official in [the prison employee's] position would

have known, then plaintiff has stated a claim of deliberate indifference.”); Williams v. Thomas,

2013 WL 1795578, at *6 (W.D. Pa. Apr. 29, 2013) (collecting cases from district courts in the

Third Circuit that have found that “the mere act of labeling a prisoner a snitch constitutes a

substantial risk of harm.”).

As to the “deliberate indifference” inquiry, the focus centers on what the defendant’s

mental attitude was, rather than what it should have been. Farmer, 511 U.S. at 841-42. “The

prison official-defendant must actually have known or been aware of the excessive risk to

inmate safety and disregarded that risk.” Shorter, 12 F.4th at 375 (internal quotation marks and

citations omitted). Further, whether a prison official “had the requisite knowledge of a

substantial risk is a question of fact subject to demonstration in the usual ways, including

inference from circumstantial evidence, and a factfinder may conclude that a prison official

knew of a substantial risk from the very fact that the risk was obvious.” Id. (emphasis added)

(internal quotation marks and citation omitted); Farmer, 511 U.S. at 842.

And as to the third component of the Eighth Amendment analysis, a prisoner, like

Stringer who is subject to the PLRA, must prove physical injury in order to recover

compensatory damages. The Supreme Court, however, has recognized that “certain absolute

constitutional rights may be vindicated by an award of nominal damages in the absence of

showing of injury warranting compensable damages.” Id. at 250-51. And punitive damages

may likewise “be awarded based solely on a constitutional violation, provided the proper

showing is made.” Id. at 251.

The parties have filed cross summary judgment motions on Stringer’s failure to protect

claim. Stringer contends he is entitled to summary judgment as no genuine issue of material fact

exists. According to Stringer, C/O Henderson three times stated in front of other prisoners that

Stringer was waiting to speak with someone in the Security Office and during the telephone call

with the Security Office said, “Stringer is waiting to give you information.” Amended

Complaint, at ¶ 5. Stringer argues that C/O Henderson was deliberately indifferent to his safety

by intentionally disclosing, in front of other prisoners, that Stringer wanted to provide

information to the Security Office. According to Stringer, based on C/O Henderson’s

comments, prisoners believed Stringer was a “snitch” or “rat” and began to threaten him. As a

result, Stringer argues that the summary judgment record establishes that C/O Henderson’s

conduct constituted deliberate indifference to a serious risk of harm.

C/O Henderson argues that he is entitled to summary judgment because Stringer has

failed to show that he was deliberately indifferent to a substantial risk of harm to Stringer or that

Stringer suffered any actual harm, both of which are necessary elements of a failure to protect

claim. Defs’ Br. at 6 (ECF No. 44). C/O Henderson does not deny that he stated in front of

other prisoners that Stringer was waiting to speak with someone in the Security Office, but C/O

Henderson claims that at no time did he call or refer to Stringer as a “snitch” or a “rat” in front

of other inmates. See Declaration of Bryan Henderson, at ¶ 9 (ECF No. 46-1 at p. 7).

As noted above, “[l]abeling an inmate a snitch may give rise to an Eighth Amendment

violation if the prison official acted with deliberate indifference to a substantial risk of harm to

the inmate.” Tabb v. Hannah, No. 1:10-cv-1122, 2012 WL 3113856, at *6 (M.D. Pa. July 30,

2012) (citing Benefield v. McDowall, 241 F.3d 1267, 1270 (10th Cir. 2001). Courts have found

that when an inmate is labeled a snitch, it may endanger and pose a substantial risk to that

inmate’s safety. See, e.g., Hamilton v. Leavy, 117 F.3d 742, 747 (3d Cir. 1997) (finding that

knowledge of an inmate’s branding as a snitch posed an imminent threat).

C/O Henderson also argues he is entitled to summary judgment because Stringer has not

alleged actual harm as the record does not establish that Stringer was “physically confronted or

assaulted, or otherwise physically harmed as a result of” C/O Henderson’s comments. Defs’

Br. at 6 (ECF No. 22). C/O Henderson asserts that other prison officials took immediate and

reasonable measures by moving Stringer to protective custody upon learning of the threats he

was receiving.

Although Stringer was moved to protective custody, the undisputed summary judgment

evidence of record shows that he continued to be threatened with physical harm as a result of

being labeled a “snitch” by other prisoners and that he suffered mental and emotional distress as

a result of these threats. “An inmate need not wait until actual attack occurs to obtain relief.”

Williams v. Thomas, No. 12-01323, 2013 WL 1795578, * 5 (E.D. Pa. 2013) (citing Benefield v.

McDowall, 241 F.3d 1267, 1270-71 (10th Cir. 2011) (rejecting the government’s argument that

a prisoner’s claim was subject to dismissal in the absence of physical injury)).

The outcome of this claim turns on credibility, something that the Court cannot decide in

reviewing a motion for summary judgment. El v. Southeastern Pennsylvania Transp. Authority,

479 F.3d 232, 237-38 (3d Cir. 2007) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). Whether C/O Henderson was deliberately indifferent to a substantial risk of harm to

Stringer and whether that deliberate indifference caused harm to Stringer are triable issues of

fact. Thus, the Court will deny the parties’ cross motions with respect to the Eighth Amendment

failure to protect claim against C/O Henderson.

B. First Amendment Retaliation Claim

It is well settled that retaliation for the exercise of a constitutionally protected activity is

itself a violation of rights secured by the Constitution, which is actionable under section 1983.

Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001). “Government actions, which standing alone do

not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial

part by a desire to punish an individual for the exercise of a constitutional right.” Rauser, 241

F.3d at 333 (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (quoting Thaddeau-X

v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999) (en banc)).

However, merely alleging the fact of retaliation is insufficient; in order to prevail on a

retaliation claim, a prisoner-plaintiff must make a three-part showing. First, as a threshold

matter, the prisoner must “prove that the conduct which led to the alleged retaliation was

constitutionally protected.” Rauser, 241 F.3d at 333-34 (citations omitted). Next, the prisoner

“must show that he suffered some ‘adverse action’ at the hands of the prison officials.” Id.

(citation omitted). The prisoner satisfies the adverse action requirement by “demonstrating that

the action ‘was sufficient to deter a person of ordinary firmness from exercising his

[constitutional] rights’.” Id. (quoting Allah, 229 F.3d at 225).

Finally, the prisoner must demonstrate “a causal link between the exercise of his

constitutional rights and the adverse action taken against him.” Id. A causal link is established

when the “constitutionally protected conduct was a substantial or motivating factor in the

decision” to take the alleged adverse action. Carter v. McGrady, 292 F.3d 152, 158 (3d Cir.

2002) (citing Rauser, 241 F.3d at 333); Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016)

(citing Rauser, 241 F.3d at 333-34)). The mere fact that an adverse action occurs after a

complaint or grievance is filed is relevant, but not dispositive, for the purpose of establishing a

causal link between the two events. See Lape v. Pennsylvania, 157 F. App’x 491, 498 (3d Cir.

2005).

Once the prisoner has made this prima facie case, the burden shifts to the defendant

prison officials to show they would have engaged in the same alleged adverse action absent the

protected conduct. Rauser, 241 F.3d at 334. “At the summary judgment stage, the plaintiff

need only meet his burden of producing evidence from which a reasonable jury could conclude

that the adverse action was taken in retaliation for the exercise of his protected rights.” Booth v.

King, 346 F. Supp.2d 751, 762 (E.D. Pa. 2004). To withstand summary judgment and submit

the question of causation to a factfinder, the plaintiff must “produce[] evidence from which a

reasonable jury could conclude that the exercise of his right was a ‘substantial and motivating

factor’ in defendants’ actions . . . .” Id.

Using these precepts, the Court will analyze whether the summary judgment record

includes evidence to support each element of a retaliation claim.

As to the first element, the undisputed summary judgment record reflects that Stringer

filed Grievance 808825 against C/O Henderson. Without question, the filing of a grievance is

constitutionally protected activity. Fantone v. Latini, 780 F.3d 184, 192 n.8 (3d Cir. 2015)

(“The filing of a prison grievance is an activity protected by the First Amendment.”). Thus, the

Court finds that Stringer has satisfied the first element of a retaliation claim.

The Corrections Defendants have filed a brief, a statement of material facts (“SMF”),

and supporting documents in support of their motion for summary judgment. Stringer was

directed to file a response by August 11, 2023. (ECF No. 48). To date, Springer has not filed a

brief or other documents in opposition to the pending motion for summary judgment nor has he

requested an extension of time to do so. Moreover, Springer has not offered any explanation for

his failure to respond to the motion for summary judgment.

Local Rule 56(E) imposes an affirmative duty on a litigant to respond to the moving

party’s Concise Statement of Material Facts and provides that “[a]lleged material facts set forth

in the moving party’s Concise Statement of Material Facts . . . will for the purpose of deciding

the motion for summary judgment be deemed admitted unless specifically denied or otherwise

controverted by a separate concise statement of the opposing party.” See also Fed.R.Civ.P.

56(e)(2) (“If a party . . . fails to properly address another party’s assertion of fact as required by

Rule 56(c) . . . consider the fact undisputed for purposes of the motion[.]”).

Here, because Springer has not denied or otherwise contradicted the facts set forth in the

Corrections Defendants’ SMF, the facts set forth in the Corrections Defendants’ SMF are

deemed admitted. (ECF No. 51). Relying on these facts, the following is undisputed:

Springer was moved to Cell I-B2019 on Administrative Custody on June 14, 2019.

(SMF, ¶ 10). I-Block is part of the Restricted Housing Unit (“RHU”) at SCI-Greene. (Id. at ¶

9). Corrections Defendants Bennett and Day were assigned to I-Block in June and July of 2019

and worked the 1400 – 2200 shift. (Id. at ¶¶ 11 – 12). Stringer submitted Inmate Grievance

808825 dated June 25, 2019, while he was in the RHU. (Id. at ¶ 20). The grievance asserted

that while Stringer was waiting to speak to Security, C/O Henderson on three occasions, in front

of other prisoners, announced that Stringer was there to provide information to Security. (Id. at

¶ 21).

In support of their motion for summary judgment, the Corrections Defendants have

submitted the Declarations of C/O Jeremy Bennett, C/O Jeffrey Day, former Grievance

Coordinator at SCI-Greene Tracy Shawley, and C/O Frank Trout, which are summarized as

follows:

C/O Bennett knew C/O Henderson but did not work any assignments with him; he was

not aware of any inmate grievances filed against C/O Henderson in June of 2019 and typically

would not be made aware of the filing of grievances against other corrections staff; he did not

have the authority to deny a legal exchange to an inmate if the appropriate paperwork had been

submitted; he did not tell Stringer at anytime that since he filed a grievance on C/O Henderson,

C/O Bennett would prevent or impede his access to his legal property; and he had no knowledge

of Stringer’s legal cases and deadlines. Declaration of Jeremy Bennett (ECF No. 52-1 at pp. 8-

9).

C/O Jeffrey Day was aware of C/O Henderson, but never had any common work

assignments with him; in the Summer of 2019, he was not aware of any inmate grievances filed

against C/O Henderson; it would be unusual for him to be made away of any grievances against

other corrections staff; he did not have the authority to deny a legal exchange to an inmate if

appropriate paperwork had been submitted; he did not tell Stringer on June 27, 2019, or any

time afterward that since he filed a grievance on C/O Henderson, C/O Day would make sure

Stringer did not receive his legal paperwork; and he had no knowledge of Stringer’s legal cases

and deadlines at any time. C/O Day also states that Stringer had full access to his property

when it was inventoried on June 20, 2019; that legal exchanges were permitted every 30 days;

that if he was the assigned property officer and the proper information was presented, then he

would assist the inmate in making a legal exchange. Declaration of Jeffrey Day (ECF No. 52-1

at pp. 11 – 12).

Tracey Shawley is currently the Unit Manager at SCI-Greene. In June and July of 2019,

she was the Superintendent’s Assistant at SCI-Greene and in that position served as the

Grievance Coordinator at SCI-Greene. According to Ms. Shawley, inmate grievances are

retrieved from a lock box in each RHU block; either Ms. Shawley or someone from her office

would typically collect the grievances in the morning and the grievances would be processed

that day; Grievance 808825 filed by Stringer was assigned to Lieutenant Frank Trout as the

Grievance Officer responsible for providing the Initial Review Response; as a matter of practice

and procedure, information concerning the subject matter of an inmate grievance is only shared

with Ms. Shawley’s staff and the assigned grievance officer; and corrections staff did not have

the ability to access information concerning the subjects of inmate grievances. Declaration of

Tracey Shawley (ECF No. 52-1 at pp. 14 – 15).

Lieutenant Frank Trout was assigned to respond to Grievance 808825 filed by Stringer;

during the course of his investigation, he did not divulge the substance of the grievance, nor did

he identify C/O Henderson as the subject of the grievance, to anyone not involved in the

investigation; and he specifically did not inform C/O Bennett or C/O Day of Stringer’s

grievance against C/O Henderson. Declaration of Frank Trout (ECF No. 52-1 at pp. 17-18).

The verified Amended Complaint contradicts some of the statements made by C/O

Bennett and C/O Day in their Declarations. For example, according to the verified Amended

Complaint, C/O Day told Stringer on June 27, 2019, that “since he filed a grievance on

Defendant Henderson he would make sure he got nothing.” Amended Complaint, Stmt of Facts,

at ¶ 28. Stringer avers that on numerous occasions he requested that both C/O Bennett and C/O

Day talk to Unit Manager Gumborevic because he was approved to get his legal work. And on

a number of occasions, “both Defendants Bennett and Day told Plaintiff that since he filed a

grievance on Defendant Henderson they [were] not giving him his legal work and laughed.” Id.

at ¶ 37.

The Court finds this controverted evidence creates a disputed issue of material fact as to

whether Defendants Bennett and Day knew of the grievance filed against Henderson and acted

on that information. Examining the record in the light most favorable to Stringer, the

nonmoving party, the Court finds that such action satisfies the “adverse action” requirement of

Rauser as it would be “‘sufficient to deter a person of ordinary firmness from exercising his

[constitutional] rights’.” Rauser, 241 F.3d at 333 (quoting Allah, 229 F.3d at 225). Thus, the

Court finds that Stringer has satisfied the second element of a retaliation claim.

Having met the adverse action requirement, Stringer must also provide evidence of a

causal connection between the exercise of his constitutional rights and the Correction

Defendants’ adverse action to withstand summary judgment. “[T]he plaintiff need only meet

his burden of producing evidence from which a reasonable jury could conclude that the adverse

action was taken in retaliation for the exercise of his protected rights.” Booth, 346 F.Supp.2d at

762. In Rauser, the Court of Appeals for the Third Circuit held that “suggestive temporal

proximity” is relevant to causation in a retaliation case. Rauser, 241 F.3d at 334 (citing Farrell

v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000)).

The summary judgment evidence of record reflects that Stringer filed his Grievance

against C/O Henderson on June 25, 2019. According to the verified Amended Complaint, on

June 27, 2019, only two days after the Grievance was filed, C/O Day told Stringer he would not

get his legal material because he had filed a Grievance against C/O Henderson. The Court finds

that Stringer has provided evidence of a causal connection between the exercise of his

constitutional rights and the Correction Defendants’ alleged adverse action from which a

reasonable jury could conclude that the exercise of his right was a ‘substantial and motivating

factor’ in defendants’ actions . . . .” Booth, 346 F.Supp.2d at 762. Thus, the Court finds that

Stringer has met the third element of a retaliation claim.

While the Court acknowledges that the act of denying the legal exchange in and of itself

does not rise to the level of a constitutional violation,9 the law in this Circuit is that

“government actions, which standing alone do not violate the Constitution, may nonetheless be

constitutional torts if motivated in substantial part by a desire to punish an individual for the

exercise of a constitutional right.” Rauser, 241 F.3d at 333. For all these reasons, the Court will

deny the Corrections Defendants’ motion with respect to the First Amendment retaliation claim

against Defendants Bennett and Day.

C. Damages

The Corrections Defendants final argument is that, even if Stringer has established a

constitutional violation, he is unable to recover compensatory damages because he has failed to

establish that he suffered a physical injury. The Court agrees with this argument. The law is

clear that absent an allegation of physical injury, a prisoner subject to the PLRA cannot obtain

compensatory damages. See Allah v. Al-Haffeez, 226 F.3d 247, 251 (3d Cir. 2000) (concluding

that mental and emotional distress cannot support a claim for compensatory damages).

Title 42, United States Code, § 1997e(e), provides that “[n]o Federal civil action may be

brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or

emotional injury suffered while in custody without a showing of physical injury.” But Section

1997e(e) only applies to claims for compensatory damages. Mitchell v. Horn, 318 F.3d 523,

533 (3d Cir. 2003). It does not bar claims for nominal damages, punitive damages, or

prospective equitable relief, such as injunctive or declaratory relief. Id. at 533-34. See Doe v.

9 In fact, the Court previously dismissed Stringer’s access to courts claim finding that the

allegations in the Amended Complaint were insufficient to state an access to court claim. See

Memorandum Opinion, 1/24/2022. (ECF No. 18).

Delie, 257 F.3d 309, 314 n. 3 (3d Cir. 2001) (“However, § 1997e(e) does not bar claims seeking

nominal damages to vindicate constitutional rights, nor claims seeking punitive damages”);

Allah v. Al-Hafeez, 226 F.3d 247, 251-52 (3d Cir. 2000) (holding that § 1997e(e) does not bar

nominal and punitive damages for violations of constitutional rights even in the absence of

physical injury).

Thus, to the extent that Stringer seeks compensatory damages without having any

physical injury, such a claim for compensatory damages is precluded. 42 U.S.C. § 1997e(e).

And while Stringer does not explicitly seek nominal damages, he need not plead that he is

seeking nominal damages. See Mitchell v. Horn, 318 F.3d at 533 n.8. Stringer does explicitly

seek punitive damages. Therefore, it is for the jury to determine whether Stringer is entitled to

nominal and punitive damages.

V. Conclusion

For all these reasons, Plaintiff’s motion for partial summary judgment will be denied.

The Corrections Defendants’ motion for summary judgment will be granted in part and denied

in part. The motion will be granted only to the extent that Stringer’s claim for compensatory

damages is precluded by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e). In all other

respects, the motion will be denied.

An appropriate Order follows.

Dated: December 14, 2023

BY THE COURT:

s/ Cynthia Reed Eddy

Cynthia Reed Eddy

United States Magistrate Judge

cc: ROBERT STRINGER

GJ-1592

SCI SOMERSET

1590 Walters Mill Road

Somerset, PA 15510-0001

(via U.S. First Class Mail)

Scott A. Bradley

Office of the Attorney General

(via ECF electronic notification)